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2017 DIGILAW 1153 (ALL)

Rajendra Prasad v. Meena

2017-05-01

DEVENDRA KUMAR ARORA, RAVINDRA NATH MISHRA II

body2017
JUDGMENT : Heard. As sufficient cause has been shown, the delay in filing the appeal is condoned. 2. The instant First Appeal under Section 19(1) of the Family Court Act has been filed against the order dated 2.2.2017 passed by Judge, Family Court/Addl. District Judge (FTC) in Case No. 760 of 2011 whereby the application preferred by Smt. Meena under Section 24 of the Hindu Marriage Act has been allowed partially and the appellant has been directed to pay Rs. 2000/- per month towards maintenance to Smt. Meena {wife} during pendency of the case. In the said suit, respondent no.1 filed an application under Section 24 of the Hindu Marriage Act which was contested by the appellant by filing objections. 3. The Court below after hearing the parties and considering the fact that during the pendency of the aforesaid case it would be appropriate that as the first respondent is not having any source of income and needs financial help so as to enable herself to maintain herself and the child. The Court below considering the fact that the appellant is running a General store shop and also has an agricultural land and is earning around Rs. 20000/- per month directed that the appellant shall pay Rs. 2000/- per month to his wife so as to enable her to meet the necessary expenses. 4. According to the learned Counsel for the appellant, the first respondent has already filed an application under Section 125 CrPC for maintenance in which an order dated 31.10.2011 was passed granting interim maintenance of Rs. 800/- to her son, namely, Akash and the said application under Section 125 CrPC is still pending and as such there was no occasion of granting the maintenance. Further, the court below failed to consider the income of the appellant, who is a petty labour and has no other source of livelihood. 5. Section 24 of the Hindu Marriage Act, which is relevant in the present context, reads as under:- "24. Further, the court below failed to consider the income of the appellant, who is a petty labour and has no other source of livelihood. 5. Section 24 of the Hindu Marriage Act, which is relevant in the present context, reads as under:- "24. Maintenance Pendente lite and expenses proceedings: Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner' s own income and the income of the respondent, it may seem to the court to be reasonable." 6. A plain reading of the Act shows that intention of the legislature is that where in any proceedings it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, order the respondent to pay the expenses of the proceedings and monthly maintenance during the proceeding. These words make the intention of the legislature quite clear that expenses have to be allowed by the Court if the requirement as provided under Section 24 of Act are fulfilled for a period during the pendency of the suit or proceeding. It may be noted that the benefits granted under this Section are only temporary in nature and there are other provisions of law where a wife, who is not able to maintain herself, can claim maintenance/permanent alimony from the husband e.g. Section 25 of HMA or under provisions of Hindu Adoption and Maintenance Act. 7. Section 24 talks about interim relief which can be granted during the pendency of proceedings in Hindu Marriage Act. Once the case is over, Section 24 benefits will automatically stop. It is available only for Hindus. Section 125 CrPC is a permanent maintenance relief. Even though this section is provided in criminal procedure code, it has got civil nature but the proceedings are conducted similar to criminal case, i.e., a little bit quicker. The relief once provided in Section 125 is valid till the wife remarries. It is available only for Hindus. Section 125 CrPC is a permanent maintenance relief. Even though this section is provided in criminal procedure code, it has got civil nature but the proceedings are conducted similar to criminal case, i.e., a little bit quicker. The relief once provided in Section 125 is valid till the wife remarries. It is applicable to all religions. 8. While dealing with the question whether a pre-existing order for payment of maintenance under Sec.125 of CrPC is a bar for maintaining an application under Sec.24 of the Hindu Marriage Act, the Courts are of the uniform view that it is not a bar and both the reliefs are independent of each other. It is well settled that a claim under Sec.24 of the Hindu Marriage Act is a relief of interim maintenance during the pendency of matrimonial proceedings. Initiation of a legal proceedings under the Hindu Marriage Act is a condition precedent whereas the claim under Sec.125 CrPC is a social relief. The civil courts granting maintenance have to only take into consideration of the pre-existing order of such payment of maintenance by the criminal court. 9. It is thus clear that the right to claim maintenance or litigation expenses under Section 24 of the Hindu Marriage Act, is not made available generally to the parties to a marriage but only when a proceeding between the spouses are pending under that Act, and in that respect, the right conferred under Section 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions of Section 24 of the Hindu Marriage Act. The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings under Section 24 of the Act serves a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right under that Act and its purpose are kept in mind, it is at once clear that the enforcement of that right cannot in any manner be hedged in by a consideration of proceedings otherwise initiated either under Section 125 CrPC or under the ordinary law. 10. The cause of action for filing a petition under section 24 of the Act would arise only when there is a matrimonial proceeding initiated by the husband or wife. Therefore, the primary requirement for claiming maintenance under section 24 of the Act is the pendency of a matrimonial proceeding. This provision was introduced with a laudable object of ensuring maintenance to a party in the proceeding so as to enable him or her to maintain themselves during the pendency of such proceedings. This provision also permits the Court to award reasonable amount for the purpose of conducting the matrimonial proceeding. There is no ceiling time prescribed for the purpose of granting maintenance under section 24 of the Hindu Marriage Act. Section 24 of the Act seeks to maintain an equilibrium between the two parties to the litigation during the pendency of the proceeding as it makes provision for payment of maintenance for a party who is in a disadvantageous position to maintain and to contest the proceeding on account of poor economic condition. 11. The remedy provided under section 125 of the CrPC is totally for a different purpose. This remedy does not oust the jurisdiction of the Family Court to award maintenance under section 24 of the Act. The scope of the proceeding under section 125 CrPC is very limited. It is purely a summary proceeding. Section 127 of the CrPC permits the Court to vary the order. Therefore, Section 125 CrPC operates in an entirely different sphere. 12. A spouse unable to maintain himself/herself is entitled to maintenance on the principle of equi-status and respect that the spouse would have enjoyed if he/she continued to live with other spouse. It is pertinent to mention that the provisions of Section 24 are beneficent in nature and the power is exercised by the Court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. It is pertinent to mention that the provisions of Section 24 are beneficent in nature and the power is exercised by the Court not only out of compassion but also by way of judicial duty so that the indigent spouse may not suffer at the instance of the affluent spouse. .The Court while considering the merits of an application for grant of an interim maintenance under Section 24 has to necessarily arrive at prima-facie determination about the earning capacity of the rival claimant. The determination cannot be made with exactitude; it is essentially interim in nature. The Court is called upon to make a summary consideration of amount which the applicant is to be awarded by way of maintenance pendente-lite and litigation expenses in accordance with the financial resources of the parties. In the instant case, the wife has stated that the husband-appellant has deserted her in October, 2010 and since then he has not given a single penny towards maintenance. She has also brought on record the fact that the appellant is running a general store shop and is having agricultural income. The court below after considering the entire facts and the assertion of the appellant that his only source of income is by doing labour work, awarded a sum of Rs. 2000/- per month to the first respondent [wife], which is perfectly justified in the circumstances of the case. 13. Having considered the material on record, we are of the view that obligation of the husband to pay such expenses cannot be deferred till final adjudication of the suit. Thus the assertion of the appellant that when the proceedings under Section 125 CrPC are pending, the Family Court erred in granting maintenance under Section 24 of the Hindu Marriage Act is not tenable. For the reasons aforesaid, the impugned order 2.2.2017 passed by the Judge, Family Court is approved and the appeal is hereby dismissed. However, it is provided that the amount awarded under Section 125 of the CrPC would be adjustable towards the amount awarded under Section 24 of the Hindu Marriage Act.